On December 22, a California federal judge issued a nationwide preliminary injunction blocking President Donald Trump’s Executive Order on Combating Race and Sex Stereotyping (“Executive Order”).  The controversial Executive Order restricted diversity training for federal contractors by prohibiting contractors from providing training covering “divisive topics.” U.S. District Court Judge Beth Labson Freeman’s preliminary injunction takes effect immediately, remains in place until further order of the court, and prohibits the federal government from implementing or enforcing key provisions of the Executive Order.

Background

In September, President Trump issued the Executive Order following a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “critical race theory,” “white privilege,” and other teachings promoting the concept that any race or ethnicity is inherently racist. The White House memorandum instructed federal agencies to cease funding such training. The Executive Order then brought federal contractors into the fold, prohibiting them from using any workplace training during the performance of a government contract that inculcates in their employees certain “divisive concepts,” and requiring them to carry those imperatives down to their subcontractors and vendors. For more on the Executive Order, click here; for more on the DOL’s October FAQ, click here.

Santa Cruz Lesbian and Gay Community Center et al v. Trump

Nonprofit organizations that provide anti-racism and anti-LGBT bias training filed suit in November claiming that the Executive Order violates their free speech and due process rights under the U.S. Constitution. On Tuesday, Judge Freeman agreed, finding that plaintiffs are likely to win their argument that the Order’s prohibitions are too vague and violate the free speech rights of anti-discrimination organizations.

The government’s interest is outweighed by the effect of the impermissible reach of the Executive Order on plaintiffs’ freedom to deliver the diversity training and advocacy that they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”

Judge Freeman’s ruling enjoins the enforcement of key provisions of Sections 4 and 5 of the Executive Order against federal contractors and federal grant recipients, and prohibits the government from: (i) requiring federal contracts to contain clauses banning the training prohibited by the Executive Order or enforcing such clauses to the extent already included in government contracts, (ii) requiring contractors to provide notice of the Executive Order’s restrictions, (iii) terminating or suspending contracts, or imposing other sanctions, on the basis of purported non-compliance with the Executive Order, (iv) requiring contractors to bind subcontractors to the Executive Order, (v) using a hotline to gather information about contractor non-compliance or investigating any such tips, (vi) publishing additional Requests for Information seeking information on the prohibited training, or (vii) requiring government agencies to condition grants on compliance with the Executive Order. However, the preliminary injunction leaves intact the government’s ability to enforce the prohibitions in the federal workforce.